Expression

Freedom of Expression

Article 10 provides that everyone has the right to freedom of expression.  The right shall include freedom to hold opinions and receive and impart information and ideas without interference from public authority and regardless of frontiers.  The article does not prevent States from requiring the licensing of broadcasting, television and cinema enterprises.

The exercise of these freedoms, since they carry with it duties and responsibilities, may be subject to formalities, conditions and restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integration or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection and reputation and rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The European Court of Human Rights lays great importance on freedom of expression.  It has stated that it constitutes an essential foundation of a democratic society.  The freedom potentially applies to opinions which offend, shock or disturb the state or a sector of the population.  The Article demands pluralism, tolerance and broadmindedness, without which no democratic society can function.

Limitations

The right, however, is not absolute. The restrictions set out permit limitation of the right to the extent strictly necessary. Any restriction must be proportionate to the legitimate aim pursued.   Many of the cases before the European Court of Human Rights turn on interpretations as to whether the restrictions are legitimate and necessary in a democratic society.

The court allows a margin of appreciation to states, but the limitations must reflect a pressing social need.  It is for the states to balance the competing interests within the margin of appreciation recognized by the court.  It is recognized that different countries have different competing legitimate aims and that it is primarily for the national authorities to balance the rights.

Privacy Right

The right to privacy is expressly recognized by Article 8 of the Convention.  It provides that everyone has the right to respect for his private and family life, his home and his correspondence.

There should be no interference by a public authority with the exercise of rights except in accordance with law and as necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection and rights and freedoms of others.

Defamation

Defamation laws have always recognized a distinction between factual statements and opinions.  If an opinion is honestly held and based on true facts, it will generally be protected under defamation laws under the principle of fair comment.

This principle is protected under the European Convention on Human Rights.  The court has held that the expression of opinion in matters of public debate and of general interest should be protected and that laws that require proof of the truth of an opinion or value judgment or the establishment of the underlying facts may be invalid.

The opinion must be founded on a sufficient factual basis.  Provided this is so, it will be generally protected even if it contains strong language or may be regarded as insulting.  The bona fide honest holding of the opinion is critical.

Disclosure of Sources

The European court has found in a British case that a requirement to disclose journalistic sources may in some circumstances, constitute a breach of freedom of expression.  Because the disclosure of journalistic sources may have a chilling effect on freedom of expression, the Convention protects sources unless there is an overriding public interest.

Censorship

In a case concerning a book with explicit sexual information aimed at adolescents, UK obscenity laws were upheld.  The famous restriction on broadcasting of members of certain prescribed organizations under section 31 of the Broadcasting Act was upheld both by the Irish courts under the Constitution and by the European Commission on Human Rights.